Commonwealth v. Kopicz

GRACI, J.,

concurring.

¶ 1 I readily join the thorough and typically scholarly Opinion of the majority in all save one respect. I agree that Appellant’s self-incrimination claim, like his remaining claims, should be rejected and that his conviction and sentence should be affirmed. I rely on grounds different from the majority, however, on this issue.

¶ 2 As the majority observes, Opinion, at 350, I recognize that by the time of the assessment hearing a defendant’s guilt has been conclusively established (subject to review on appeal) and that the registration, notification and counseling provisions of Megan’s Law II do not constitute criminal punishment. In my view, however, those facts do not resolve Appellant’s self-incrimination claim.

¶ 3 The privilege against self-incrimination “ ‘can be asserted in any proceeding, civil or criminal, administrative or judicial, *354 investigatory or adjudicatory,’ in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding. Kastigar v. United States, 406 U.S. 441, 444-445 , 92 S.Ct. 1658 , 32 L.Ed.2d 212 (1972); see also McCarthy v. Amdstein, 266 U.S. 34, 40 , 45 S.Ct. 16, 17 , 69 L.Ed. 158 (1924) (the privilege ‘applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it’).” United States v. Balsys, 524 U.S. 666, 672 , 118 S.Ct. 2218 , 141 L.Ed.2d 575 (1998). Therefore, it is not enough to say that “[a]t the assessment stage of the proceedings, Appellant is no longer subject to prosecution as his guilt has already been determined.” Opinion, at 350. That was the apparent rationale of a number of Pennsylvania Supreme Court decisions which had held that the privilege “in its pure form” had no direct application to the penalty phase of a capital murder trial. See Commonwealth v. Edmiston, 535 Pa. 210 , 634 A.2d 1078, 1089 (1993) (“The privilege against self-incrimination has no direct application to a determination of the proper sentence to be imposed because the presumption of innocence which accompanies the accused throughout the proceedings to determine his guilt has no direct application to the sentencing determination.”); Commonwealth v. Travaglia, 502 Pa. 474 , 467 A.2d 288, 300 (1983) (“[T]he privilege against self-incrimination in its pure form has no direct application to a determination of the proper sentence to be imposed; the purpose of the prosecutor is not to ‘incriminate,’ and the goal of the guilty defendant is not to avoid ‘incrimination.’ ”), cert denied sub nom., Travaglia v. Pennsylvania, 467 U.S. 1256 , 104 S.Ct. 3547 , 82 L.Ed.2d 850 (1984). Accord Commonwealth v. Rice, 568 Pa. 182 , 795 A.2d 340 ; 358 (2002) (opinion announcing judgment of court) (“the sentencing phase of trial has a different purpose than the guilt determination phase, and ... the privilege against self-incrimination ... has no direct application to the latter phase”); Commonwealth v. Lester, 554 Pa. 644 , 722 A.2d 997, 1009 (1998) (same); Commonwealth v. Holland, 518 Pa. 405 , 543 A.2d 1068, 1077 (1988) (same). The Supreme Court, however, has recently repudiated this line of authority and has recognized that the privilege is applicable to the penalty phase of capital trials. Commonwealth v. Freeman, 573 Pa. 532 , 827 A.2d 385, 410 (2003) (finding violation of privilege but concluding it was harmless beyond a reasonable doubt.)

¶4 It could certainly be asserted that statements made during the assessment process could be used to form the link in the chain of evidence needed to prosecute, not necessarily for' the offense for which the offender has already been found guilty by plea or jury verdict (although in light of Freeman and the cases it relies on, that may be irrelevant), but for some other offense. That alone would be grounds for invoking the privilege. That the privilege could be invoked, however, does not end the inquiry.

¶ 5 The United States Supreme Court has recently explained that “mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.” Chavez v. Martinez, 538 U.S. 760 , -, 123 S.Ct. 1994, 2002 , 155 L.Ed.2d 984 (2003) (plurality); Id., at-, 123 S.Ct. at 2006 (Souter, J., joined by Breyer, J., concurring) (agreeing that “the text of the Fifth Amendment ... focuses on courtroom use of a criminal defendant’s compelled, self-incriminating testimony, and the core of the guarantee against compelled self-incrimination is the exclusion of *355 any such evidence.”). 7

¶ 6 In the case sub judice, Appellant does not tell us what, if any compelled statements were used in any criminal proceeding against him. He argues in the abstract that Megan’s Law II “allows the Assessment Board to compel Appellant ‘to give evidence against himself by allowing the Board to requisition as evidence for the prosecution all statements made by Appellant when he was institutionalized or subjected to a court-ordered evaluation at any state facility1 and that the “[u]se of such information obtained after the grant of privilege constitutes a violation of the right against self-incrimination.” Consolidated Brief for Appellant, at 24-25. He never identifies in his brief what statements of his were used against him at the Megan’s Law II assessment hearing (assuming arguendo that such a proceeding is a “criminal case” for purposes of application of the privilege). We do not address constitutional issues in the abstract. Since Appellant points to no concrete use of any statement he was compelled to give in any criminal case against him, I would reject his self-incrimination claim and, for the reasons expressed herein, join the majority in doing so.

. The protection afforded against self-incrimination by Article I, § 9 of the Pennsylvania Constitution, Pa. Const. Art. I, § 9, provides no greater rights than the Fifth Amendment to United States Constitution, U.S. Const. amend. v. Commonwealth v. Arroyo, 555 Pa. 125 , 723 A.2d 162, 166-67 (1999) (citing Commonwealth v. Morley, 545 Pa. 420 , 681 A.2d 1254, 1258 (1996), and Commonwealth v. Swinehart, 541 Pa. 500 , 664 A.2d 957, 962-65 (1995)).